CADDNAR

[CITE: Belcher & Belcher v. Yager-Rosales, 11 CADDNAR 79 (2007)]

 

[VOLUME 11, PAGE 79]

 

Cause #: 05-209W

Caption: Belcher and Belcher v. Yager-Rosales

Administrative Law Judge: Lucas

Attorneys: Snyder; Law

Date: March 13, 2007

 

 

FINAL ORDER        

[NOTE: ON APRIL 12, 2007, THE REPONDENTS TOOK JUDICIAL REVIEW IN THE KOSCIUSKO CIRCUIT COURT (43C01-0704-MI-441). ON MARCH 18, 2008, KOSCIUSKO CIRCUIT COURT ENTERED JUDGMENT AFFIRMING THE ADMINISTRATIVE LAW JUDGE.]

 

The boundary separating the riparian waters of Mickey Belcher and Karen Belcher from those of Lisa A. Yager-Rosales is determined to be a line running northwest from the “property line stake” identified in the upper photograph from Belchers’ Exhibit W.  This line shall terminate 24 feet lakeward from the waterline or shoreline, and the area beyond the termination point is reserved for navigation.  In addition, any pier, boat station or similar facility, and any boat moored by or at the consent of Mickey Belcher or Karen Belcher or of Lisa A. Yager-Rosales, shall be located within their respective riparian areas and within 17 feet, measured perpendicularly, from the shoreline or water line of a side or of the end of the Quiet Harbor Channel.  Mickey Belcher, Karen Belcher and Lisa A. Yager-Rosales are each ordered to refrain from placing a pier, boat station or similar facility, or from mooring a boat or from allowing another person to moor a boat, outside their respective riparian waters as described in this order.  If properly recorded with the Kosciusko Recorder within 90 days of the entry of this final order, these restrictions shall run with the land and may be enforced by the parties or by their successors in interest, subject to the public trust established by IC 14-26-2 (and any subsequent amendments or modifications to IC 14-26-2).

 

 

FINDINGS OF FACT AND CONCLUSIONS OF LAW

 

1.      Mickey Belcher and Karen Belcher (the “Belchers”) are the owners of real estate located in Kosciusko County, Indiana, described as follows: Lot 1, Leeland Fourth Addition (“Belchers’ real estate”).  The Belchers’ real estate borders the Quiet Harbour Channel of Lake Wawasee.

 

2.      Lake Wawasee is a “public freshwater lake” as the term is defined at IC 14-26-2-3 and is subject to IC 14-26-2 (sometimes referred to as the “Lakes Preservation Act”).  The Department of Natural Resources (the “DNR”) administers licensure and sanctioning under the Lakes Preservation Act.  IC 14-26-2-6, IC 14-26-2-9, IC 14-26-2-19, IC 14-26-2-20, IC 14-26-2-22, and IC 14-26-2-23. 

 

3.      The Natural Resources Commission (the “Commission”) is the “ultimate authority” for the DNR under IC 4-21.5 (sometimes referred to as the “Administrative Orders and Procedures Act” or “AOPA”).  IC 14-10-2-3.  The Commission has adopted rules at 312 IAC 3-1 to assist with its implementation of AOPA.

 

[VOLUME 11, PAGE 80]

 

4.      In 2000, the Indiana General Assembly amended the Lakes Preservation Act with the enactment of P.L. 64-2000, SEC. 1, codified at IC 14-26-2-23.A.  As pertinent here, the Commission was directed to adopt rules regarding the placement of temporary structures within a public freshwater lake.  In addition, the Commission was directed to establish a process for the mediation of disputes among riparian owners. 

 

5.      Rules to address temporary structures and the use of mediation are now included within 312 IAC 11-1 through 312 IAC 11-5. 

 

6.      On November 28, 2005, the Belchers by their attorney filed, under AOPA, a “Petition for Administrative Review” with the Commission seeking administrative review of a riparian rights dispute with Lisa A. Yager-Rosales (“Yager-Rosales”) on Lake Wawasee.  Yager-Rosales is the owner of real estate in Kosciusko County, Indiana described as follows: Lot 70, Leeland Third Addition (“Yager-Rosales’s real estate”). The Yager-Rosales’s real estate is adjacent to the Belchers’ real estate and also borders the Quiet Harbour Channel of Lake Wawasee.

 

7.      Quiet Harbour Channel is approximately 58 feet wide.

 

8.      Both the Belchers and Yager-Rosales maintain piers, and dock boats at their piers, along the “shoreline or water line” (as defined at IC 14-26-2-4) of the Quiet Harbour Channel of Lake Wawasee.

 

9.      In substance, the “Petition for Administrative Review” referenced in Finding 6 alleged that a dispute existed between the Belchers and Yager-Rosales as to the following: 

A. Whether Yager-Rosales has placed, or is about to place, a pier into the riparian area of the Belchers.

 

B. Whether Yager-Rosales has placed, or is about to place a pier into the waters of Lake Wawasee in such a fashion as to interfere with the riparian rights of the Belchers.

 

[VOLUME 11, PAGE 81]

 

C. If Yager-Rosales has the right to place and pier and dock boats in the general area proposed, the manner in which the placement of piers and docking of boats may take place so as not to interfere with the rights of the Belchers.

 

D. Whether the Belchers are entitled to full use of the shoreline of the Belchers’ real estate as shown in an attached survey.

 

10.  A “Notice of Prehearing Conference” and the “Petition for Review” was served by certified mail on Yager-Rosales.

 

11.  The Commission has jurisdiction over the subject matter and over the persons of the parties

 

12.  On December 16, 2005, Yager-Rosales by her attorney filed a “Motion for Mediation before the Natural Resources Commission”.  The motion was granted, and a mediation session was conducted, but the mediation effort ended in an impasse.

 

13.  A prehearing conference was conducted by telephone on May 24, 2006.  As memorialized in a “Report of Telephone Prehearing Conference and Notice of Hearing” entered on the following date, the issues for hearing were outlined as follows:

For consideration is a claim for relief by the [Belchers] in which they assert the placement of structures and boats by [Yager-Rosales] inteferes with the [Belchers’] riparian rights.  The site of the dispute is the eastern extremityB. of a manmade channel of Lake Wawasee in Kosciusko County.  [Yager-Rosales’s] attorney contends the [Belchers] have not previously objected to the placement of structures and boats.  In response to a question by [Belchers’] attorney, [Yager-Rosales’s] attorney indicated his client was not claiming a prescriptive easement with respect to the placement of the structures and boats.

 

14.  At the request of Yager-Rosales, a hearing originally scheduled for August 8 was continued but was then conducted as rescheduled on September 26, 2006.

 

15.  On the line that separates the Belchers’ real estate from the Yager-Rosales real estate, and a few inches landward from the shoreline or water line at the southeast corner of the western-most of the three southerly arms of the central channel, is a “property line stake” that is accurately depicted in the upper of two photographs admitted as Belchers’ Exhibit W. 

 

[VOLUME 11, PAGE 82]

 

16.  As indicated by the testimony, a significant erosion and sedimentation problem existed at the south end of the Quiet Harbour Channel where a county culvert drained into it.  The Belchers and Yager-Rosales’s predecessor in title undertook a significant project to install a wooden retaining wall to held control the erosion.  More recently, the DNR and the Wawasee Area Conservancy Foundation constructed a sedimentation pond, installed riprap and performed plantings to better control the sedimentation.  As part of the installation of the wooden retaining wall, a pier was placed in front of the wall to shore up the wall itself.  This pier was not used for the docking of boats.  Yager-Rosales has also undertaken substantial efforts by placing a concrete seawall along the eastern shoreline or water line of the Quiet Harbour Channel and adjacent to the Yager-Rosales real estate, as well as by extending the seawall along a portion of the shoreline beyond the location of the property line stake adjacent to the Belchers’ real estate.  The extension onto the Belchers’ real estate was performed with the express or tacit consent of the Belchers. 

 

17.  The efforts by the parties, by the Wawasee Area Conservancy Foundation, and by the taxpayers acting through the DNR, have been for the betterment of the Quiet Harbour Channel and of Lake Wawasee.  The parties have also individually and jointly benefited from these efforts.

 

18.  On a public freshwater lake, a myriad of other issues may be presented concerning the proprietary relationships between neighboring riparian owners or between a riparian owner and the DNR where the DNR is fiduciary for the public trust.  A party might present facts to show the existence of a binding agreement with the other party, adverse possession, a prescriptive easement, or some other event of legal import that would determine riparian rights.  Absent a showing of this consequence, the history of which pier or which boat was placed in which configuration, and by whom a pier or boat was placed, does not present a material fact.  First in time first in right is not a viable factual or legal principle for determining the rights of riparian owners or those of the public on the waters of public freshwater lakes.  Barbee Villa Condominium Owners Assoc. v. Shrock, 10 Caddnar 23, 24 (2005).C.

 

19.  Riparian rights are a proprietary interest derived from ownership of the fee title to land that abuts the lake.  “With regard to riparian rights, a riparian owner acquires his rights to the water from his fee title to the shoreland.”  Abbs v. Syracuse, 655 N.E.2d 114, 115 (Ind. App. 1995). 

 

20.  In Zapffe v. Srbeny, 587 N.E.2d 177 (Ind. Ct. App. 1992), the Court of Appeals adopted a “‘reasonableness’ test” in an attempt to “accommodate the diverse characteristics of Indiana’s numerous [public] freshwater lakes.”  The reasonableness test applies to the relationships between riparian owners as well as the relationship between a riparian owner and the public.  Riparian owners may exercise rights such as access, swimming, fishing, bathing, and boating subject to the rule of reasonableness.  The installation of a pier by a riparian owner is a reasonable use under the Lakes Preservation Act “so long as it does not interfere with the use of the lake by others…”

 

[VOLUME 11, PAGE 83]

 

21.  The Court of Appeals concluded in Bath v. Courts, 459 N.E.2d 72, 76 (Ind. Ct. App. 1984) that “riparian right owners may build a pier within the extension of [their] shore boundaries only so far out as not to interfere with the use of the lake by others.”  A pier or platform that extended into the riparian area of another person was an encroachment.  The law “prohibits encroachments upon the riparian rights of another.” 

 

22.  The Bath decision also adopted the first tier of a three-tiered approach to pier configuration principles recognized in Wisconsin law at Nosek v. Stryker, 103 Wisc.2d. 633, 309 N.W.2d 868 (1981 Wisc.).  The first tier supports the principle that where a shoreline approximates a straight line, and where the onshore property boundaries are perpendicular to the shore, the boundaries are determined by extending the onshore boundaries perpendicular to the shoreline.  Cited with approval in Borsellino v. Kole, 168 Wisc. 2d 611, 484 N.W.2d 564 (Wisc. App. 1992) and by the Commission in Rufenbarger v. Lowe, et al., 9 Caddnar 150 (2004) and Sims v. Outlook Cove, LLC, et al., 10 Caddnar 258 (2006).

 

23.  The first-tier approach of Nosek, as approved for Indiana in Bath, is inapplicable where the property boundaries do not approach the shoreline or water line at a perpendicular, or where the shoreline is concave as viewed from the land, forming an inlet or bay.  The Commission summarized the three-tiered approach of Nosek in Roberts v. Beachview Properties, LLC, Harbour Condominiums, and DNR, 10 Caddnar 125, 138 (2005):

 

The Nosek court established three methods for determining riparian rights. First, as was the factual scenario in Bath, where the course of a shoreline approximates a straight line and the onshore property division lines are at right angles with the shore, the boundaries extending into the lake are determined by simply extending onshore property division lines into the lake. Second, when boundary lines on lakeshore property are not at right angles with the shore but approach the shore at obtuse or acute angles, it is inappropriate to apportion riparian tracts by extending onshore boundaries. Instead, division lines should be drawn in a straight line and at a right angle to the shoreline without respect to the onshore boundaries. Third, when the shoreline of a lake is irregular and it is impossible to draw lines at right angles to the shore to accomplish a just apportionment of adjacent landowners’ riparian rights, then boundary lines should be run in such a way as to divide the total navigable waterfront in proportion to the actual shoreline of each owner taken according to the general trend of the shore.

 

Upon the facts in Roberts, which did not comport with Bath but which are also unlike those of the instant proceeding, the Commission applied the second-tier approach from Nosek to delineate riparian zones among the parties.

 

[VOLUME 11, PAGE 84]

 

24.  The first-tier (Bath) approach or the second-tier (Roberts) approach may have utility to determining riparian zones for pier configurations among neighbors on the same side of a manmade channel, at least where pier placement would not interfere with navigation or with the usage of riparian owners on the opposite side of the channel.  These approaches generally would not have utility to determining riparian zones between neighbors who share a shoreline at the end of a narrow manmade channel.  Under the first-tier approach or the second-tier approach, the end of a manmade channel is likely to present a severe concave curvature where competing landowners would have claims to the same water for their respective riparian zones. 

 

25.  The first-tier approach and second-tier approach are inapplicable to the instant proceeding because the Belchers’ real estate and the Yager-Rosales’s real estate border approximately at the corner of the end of a narrow manmade channel.  Both the Belchers and Yager-Rosales could individually lay claim to the lion’s share of the end of Quiet Harbour Channel based on an insular view from their respective shorelines.  Also, the Yager-Rosales argument is rejected that filling lake space with a boat is a superior use to leaving the space unoccupied.  Even setting aside the public trust established by the Lakes Preservation Act, a riparian owner has as much right to enjoy the unencumbered waters of a lake as to enjoy those waters for mooring a boat.

 

26.  What here would provide the shoreline usage to the nearest of the respective riparian owners as anticipated by Abbs v. Syracuse, and that would best satisfy the reasonableness test as anticipated by Zapffe v. Srbeny, is an implementation of the third-tier approach.  The shoreline of Quiet Harbour Channel at the property line stake described in Finding 15 is irregular, and it is impossible to draw a line at right angles to the shore to accomplish a just apportionment of adjacent landowners’ riparian rights.  Drawing a right angle from a point at the corner of a narrow channel is almost an absurdity.  One result is achieved if the end of the channel is used as the measure for the right angle, and another fundamentally different result is achieved if the side of the channel is used as the measure for the right angle.  Neither result would be a just apportionment. 

 

27.  The boundary line in this proceeding should be run in such a way as to divide the total navigable waterfront in approximate proportion to the actual shoreline of the Belchers and Yager Rosales.  A just apportionment would be accomplished by running a line northwest from the property line stake.  The line should terminate 24 feet lakeward from the waterline or shoreline, and the area that commences beyond this termination point should be reserved for navigation.  A second limitation on the Belchers and Yager-Rosales should be that no pier or boat should be located more than 17 feet, measured perpendicularly, from a shoreline or water line of the side or of the end of the Quiet Harbour Channel.

 

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28.  Yager-Rosales also claims entitlement to relief on the basis of “equitable laches” and on the basis of a “prescriptive easement”.

 

29.  AOPA does recognize the applicability, under proper circumstances, of affirmative defenses.  For an affirmative defense, the burden of persuasion rests with the person seeking its protection.  “Before the hearing on which the party intends to assert it, a party shall, to the extent possible, disclose any affirmative defense specified by law on which the party intends to rely.  If a prehearing conference is held in the proceeding, a party notified of the conference shall disclose the party’s affirmative defense in the conference.”  IC 4-21.5-3-14(c).

 

30.  312 IAC 3-1-4(b) provides that “A party wishing to assert an affirmative defense…shall do so, in writing, filed and served not later than the initial prehearing conference, unless otherwise ordered by the administrative law judge.”

 

31.  Although the AOPA does not identify what are affirmative defenses, Trial Rule 8(c) lists estoppel and laches.  Department of Natural Resources v. Fulton County, et al., 6 Caddnar 123, 126 (1993) and Fischer v. Stodghill and Hartford Fire Insurance Company, 10 Caddnar 147 (2005).

 

32.  Any “matter constituting avoidance” is in the nature of an affirmative defense.  Trial Rule 8(c).  As applicable to the instant action, a prescriptive easement is also an affirmative defense.  Yet “[p]rescriptive easements are not favored by the law.... In order to establish the existence of a prescriptive easement, the evidence must show an actual, hostile, open, notorious, continuous, uninterrupted adverse use for twenty years under a claim of right.”  On land, physical evidence can help establish adverse use, and an unexplained use of a path or road for over 20 years offers a presumption of adverse use. There is not a similar presumption “in favor of a party trying to establish a prescriptive easement for the recreational use of a body of water.... Recreational use (especially of water which leaves no telltale path or road)...seems...likely to be permissive” rather than adverse. Carnahan v. Moriah Property Owners Ass’n, 716 N.E.2d 487 (Ind. 1999).  See, also, Rufenbarger v. Lowe, et al., 9 Caddnar 150, 152 (2004).

 

33.  Yager-Rosales has not asserted an affirmative defense as required by IC 4-21.5-3-14(c) and as required by 312 IAC 3-1-4(b).  A petition for an order to extend the time for filing an affirmative defense was not filed nor was an order granted to extend the time for filing an affirmative defense.  Additionally, Yager-Rosales stated directly that no claim was being made based upon a prescriptive easement.  Finding 13.

 

34.  Perhaps more critically, the evidence does not support either claimed affirmed defense.

 

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35.  As to the claim of equitable laches, the evidence does not demonstrate an inexcusable delay by the Belchers in exercising their rights.  Yager-Rosales claims the expiration of two years was unreasonable in the pursuit of this proceeding, but the evidence suggests an incremental expanding usage by Yager-Rosales toward which the Belchers were at first permissive but later increasingly frustrated.  Seasonal usage of recreational waters may change over the years and almost inevitably changes with the seasons.  The expiration of two boating seasons would not typically support an action for usage of public waters based upon laches, and it is insufficient based upon the facts in the instant action.  Although Yager-Rosales’s husband may have hoped and believed the Belchers acquiesced in changed circumstances, the evidence also does not support that this perspective was or reasonably should have been held by the Belchers.

 

36.  In Fraley v. Minger, 829 N.E.2d 476, 483 (Ind. 2005), the Indiana Supreme Court synthesized and simplified the various holdings of Indiana’s appellate courts regarding the standard of proof for adverse possession.  The Court determined the heightened standard of “clear and convincing” was required, rather than the lesser standard of “preponderance of the evidence”, to establish adverse possession.  In addition, the factors to be considered were consolidated and reduced to four:

 

1. Control: The person asserting adverse possession must exercise a degree of use and control over the parcel that is normal and customary considering the characteristics of the land (reflecting the former elements of “actual”, and, in some ways, of “exclusive” possession).

 

2. Intent: The person asserting adverse possession must demonstrate intent to claim full ownership of the tract superior to the rights of all others, particularly the legal owner (reflecting the former elements of “claim of right”, “exclusive”, “hostile” and “adverse”).

 

3. Notice: The person asserting adverse possession must demonstrate its actions with respect to the land were sufficient to give actual and constructive notice to the legal owner of the control and the intent elements (reflecting the former “visible”, “open”, “notorious”, and in some ways “hostile” elements).

 

4. Duration: The person asserting adverse possession must demonstrate control, intent and notice existing continuously for the required period of time (reflecting the former “continuous” element).

 

37.  IC 32-23-1-1 requiring 20 years of use was not modified by the Indiana Supreme Court in Fraley.

 

38.   In the first decision following Fraley, the Indiana Supreme Court applied the same elements to a claim of prescriptive easement in Wilfong v. Cessna Corp., 838 N.E.2d 403 (Ind. 2005).  The Court stated: “This reformulation applies as well for establishing prescriptive easements, save for those differences required by the differences between fee interests and easements.”  Wilfong at 406.

 

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39.  “Prescriptive easements are not favored by the law.”  On land, physical evidence can help establish adverse use, and an unexplained use of a path or road for over 20 years offers a presumption of adverse use.  There is not a similar presumption “in favor of a party trying to establish a prescriptive easement for the recreational use of a body of water.... Recreational use (especially of water which leaves no telltale path or road)...seems...likely to be permissive” rather than an intent that is adverse. Carnahan v. Moriah Property Owners Ass’n, 716 N.E.2d 487 (Ind. 1999). 

 

40.  In order to establish a prescriptive easement over the riparian area of the Belchers, Yager-Rosales would be required to show by clear and convincing evidence that she had established each of the four elements described in Finding 36.  This burden of proof must properly be viewed in the context of recreational waters, such as those of the Quiet Harbour Channel of Lake Wawasee, where the use may be likely to be permissive rather than adverse.

 

41.  Yager-Rosales has failed to present clear and convincing evidence that she or her predecessors exercised exclusive or hostile control over the riparian waters of the Belchers.  To the extent that persons other than the Belchers used the area for the mooring of boats, the usage seems likely to have been permissive.  In addition, the evidence shows only a sporadic usage by other than the Belchers until at least 2000.  There is no showing of continuous usage for the requisite 20 years.  Yager-Rosales has failed to present clear and convincing evidence to show a prescriptive easement is supported by either the control element or the duration element.